Home Moral guidelines Tunisia: Reinstate dismissed judges and prosecutors

Tunisia: Reinstate dismissed judges and prosecutors

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Since taking power on July 25, 2021, President Kais Saied has launched repeated attacks on the right to a fair trial and the independence of the judiciary. On June 1, 2022, President Kais Saied issued Executive Order 2022-35 giving him the power to dismiss judges and prosecutors without notice, based on reports from unspecified “relevant bodies” that they constitute a threat to “public security” or “supreme interests”. of the country” and for acts which “damage the reputation, independence or proper functioning of justice”. On the same day, he dismissed 57 judges whose names were published in the Official Gazette. He announced their dismissal in a videotaped speech citing charges including obstruction of terrorism-related investigations, financial corruption, ‘moral corruption’ and ‘adultery’ among other misdeeds and later that day , the names of 57 dismissed judges and prosecutors were published in the Official Gazette.

This was not President Saied’s first attack on the justice system. On February 12, 2022, it adopted Decree-Law 2022-11 in which it dissolved the Superior Council of the Judiciary, a body of magistrates and legal, financial, tax and accounting experts elected mainly by their peers which was created after the 2011 Tunisian revolution to oversee the judiciary and protect it from executive interference. President Saied replaced the Council with a temporary body, partly appointed by him, and endowed himself, in the same decree-law, with the power to intervene in the appointment, career and dismissal of judges and prosecutors .

On August 14, 2022, the Administrative Court of Tunis issued its emergency decision concluding that 49 of the 57 arbitrarily dismissed judges and prosecutors should be immediately reinstated in their functions. The decision of the court in favor of the judges and prosecutors is not subject to appeal and must be executed immediately in accordance with article 41 of law n° 72-40 relating to the Administrative Court. Yet the Justice Department has so far refused to comply with the ruling. Almost a month after the court ruling, judges and prosecutors have not been reinstated, in complete disregard of the court ruling and the rule of law.

Following the decision of the Administrative Court, on August 14, the Ministry of Justice published a statement on its Facebook page indicating that the judges dismissed by decree-law 2022-35 of June 1 were subject to a investigation in criminal proceedings. On August 20, the Ministry of Justice issued a second statement giving more details on the criminal proceedings against them, indicating that the prosecution had seized 109 cases related to financial and economic crimes as well as terrorism crimes. , among others. However, according to one of the lawyers for the 57 judges interviewed by Amnesty International, none of them have been officially informed of the legal proceedings against them and they still do not have access to their files in the context of these proceedings. . The Ministry of Justice should in any event reinstate judges and, in the event of credible allegations of misconduct amounting to serious misconduct or criminal offences, only initiate disciplinary or legal proceedings against them with full respect international standards.

The United Nations Human Rights Committee, the expert body that provides the definitive interpretation of the International Covenant on Civil and Political Rights, which binds Tunisia, in its clarification of the State’s obligation ensure the right to a fair trial (General Comment 32) underlined: “Judges may be removed only for serious reasons of misconduct or incompetence, according to fair procedures guaranteeing the objectivity and impartiality provided for by the Constitution or the law. The dismissal of judges by the executive, for example before the expiry of the term for which they were appointed, without any particular reason being given to them and without effective judicial protection being available to challenge the dismissal is incompatible with the independence of the judiciary. ”

According to the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, adopted by the African Commission on Human and Peoples’ Rights in 2005, “[judicial] officials subject to disciplinary, suspension or dismissal proceedings are entitled to fair trial guarantees, including the right to be represented by a legal representative of their choice and to an independent review of the decisions rendered in the context of disciplinary proceedings, suspension or dismissal.